- (1.) THIS is an appeal by Special Leave under section 417 (3) of the Code of Criminal Procedure at the instance of the complainant, the Corporation of Calcutta, against an order of acquittal. The complainant alleged that the State of West Bengal was carrying on the trade of a daily market at 1, Orphanganj Road, Calcutta, without obtaining a licence as required under section 218 of the Calcutta Municipal Act, 1951 for the year 1960-61.
(2.) ON this allegation the State of West Bengal, the Collector of 24-Par-ganas and the Superintendent, orphanganj Market were tried under section 537 of the Act for having contravened the provisions of section 218 of the Act. All the accused pleaded not guilty. The learned Magistrate held that the State of West Bengal was not bound by the provisions of the Calcutta Municipal Act, 1951 and accordingly he acquitted all the accused.
(3.) MR. Basu, who appears for the Corporation, argues that the learned Magistrate should have held that the State of West Bengal was bound by the provisions of section 218 of the Act and as such the order of acquittal should be set aside. The question if and when the State is bound by the provisions of any statute was considered by the Privy Council in (1) Province of Bombay v. Municipal Corporation of the City of Bombay and another, reported in A. I. R. 1947 Privy Council 34. This case was decided in October 1946 i. e. , before India attained independence. There the question was if the Crown was bound by sections 222 (1)and 265 of the City of Bombay Municipal Act. The Privy Council held that the Crown was not bound by those provisions. The principle decided in that; case was that the Crown was not bound by a statute unless the Crown was specifically made bound or unless the Crown might be said to be bound by necessary implication. Some doubts were expressed if this principle continued to be good law after India attained independence and particularly after the Constitution of India came into force. But the Supreme Court has now set at rest all these doubts and has held that the law as explained by the Privy Council continued to be good law even after the Constitution of India came into force. The Supreme Court has held in (2) Director of Rationing and Distribution v. The Corporation of Calcutta and others, reported in A. IR. 1960 S. C. 1355 that the State is not bound by a statute unless the State is expressly made bound or the State may be said to be bound by necessary implication. In that case the Director of Rationing and Distribution representing the Food Department of the Government of West Bengal used premises No. 259, Upper Chitpore Road, for the purpose of storing rice without a licence as required under section 386 of the Calcutta Municipal Act, 1923 corresponding to section 437 of the Calcutta Municipal Act, 1951 during the year 1951-52. It was held that the State of West Bengal was not bound by the provisions of section 386 of the Act of 1923 corresponding to section 437 of the Act of 1951. Mr. Basu contends that the Supreme Court came to this conclusion because the State of West Bengal was storing the rice in question as part of the normal duties of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and order. He submits that in the present case the State of West Bengal was not carrying on the trade of a daily market as any function of a sovereign but was carrying on the trade for business purposes like an individual citizen. He argues that the State should, in the circumstances, be held bound by the provisions of section 218 of the Act. The substance of his submission is that the State may not be bound when the State does anything in the discharge of its duties as a sovereign. But the State should be made bound by a statute if, the State does something for business purposes like any other individual citizen. He submits that the Supreme Court left this aspect of the matter open in that case. I find that on behalf of the Corporation this contention was raised before the Supreme Court but the Supreme Court did not consider this aspect of the matter as it found that in the facts of that case the State was by storing the foodstuff discharging the duties as a sovereign. But it is argued on behalf of the State that the principle of law explained by the Privy Council and now approved by the Supreme Court is in wide terms and is of general application. Neither the Privy Council nor the Supreme Court has drawn any distinction between the State doing something in the discharge of its duty as a sovereign and the State doing something by way of business like any other individual citizen. A somewhat similar question arose in (3) Corporation of Calcutta v. The Sub-Postmaster, Dharamtolla Post Office, reported in 54 C. W. N. 429. In that case the Sub Post-Master used premises No. 43, dharamtolla Street, Calcutta for storing foodstuffs without a licence as required under section 386 of the Calcutta Municipal Act, 1923. A Division Bench of this Court, in view of the Privy Council decision in the Bombay case, came to the conclusion that the State was not bound by the provisions of section 386 of the Calcutta Municipal Act, 1923. There is, however, no doubt that in that case also the State was storing foodstuffs in the discharge of its duties as a sovereign. It does not appear that the question, if the State was bound by the provisions of a statute, when the State does something by way of business like any other individual citizen, has been specifically considered in any case. It cannot be gainsaid that there is a substantial difference between a State discharging its duties as a sovereign and a State doing something by way of business. This is becoming more and more important as the State is gradually entering into different commercial undertakings. If the State enters into a trade or business which is also practiced by individual citizens, it will be very unfair to the citizen if the State is placed in a privileged position as compared to an individual citizen. Here in this case the State is running a daily market as a trade. There are private markets run by individual citizens as a trade in Calcutta those individuals are to take out licences on payment of fees. If the State is not bound by the relevant provisions of the Municipal Act the State will be placed in a privileged position. This will certainly be unfair to the individual citizen. Furthermore, the principle that the State is not bound by the provisions of any statute will lead to dangerous results when the State comes down to enter the field or trade or business like any other individual citizen. Under section 325 of the Calcutta Municipal Act, 1951, the Corporation has power to require the person who runs a market to make provision for privies and urinals in the market. If the State is not bound by this provision and if the Corporation cannot require the State to provide for privies and urinals in the market, it will certainly affect the health and sanitation of the people inhabiting the locality. It cannot be said that the legislature contemplated such a possibility. I am, therefore, of opinion that the principle that the State is not bound by a statute unless named specifically or by necessary implication should be limited to when the State does anything in the discharge of its duties as a sovereign. But if and when the State runs a business like an individual citizen the State should be held to be bound by the provisions of a statute like any other individual citizen unless expressly or by necessary implication excluded. There is no provision in the Calcutta Municipal Act, 1951 from which it can be said that the State has been excluded from the provisions of the Act either expressly or by necessary implication. On the other hand section 208 of the Act specifically excludes the carriages and animals belonging to Government and maintained for the use of the Governor or his staff and household or for Police and military purposes from the imposition of the tax payable on carriages, and animals. If, the State was intended to be excluded from all the provisions of the Act this particular provision excluding some only of the carriages and animals belonging to the State from taxation would not have been necessary. It may, therefore, be legitimately said that the State was not excluded from the provisions of the Act either expressly or by necessary implication. I hold, therefore, that in the facts of this case the State of West Bengal must be held to be liable to take out a licence for running the market in question under section 218 of the Act.;